Wells v. Goodbread, 36 N.C. 9, 1 Ired. Eq. 9 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 9, 1 Ired. Eq. 9

NEWMAN WELLS et al. Adm’rs. of ANTHONY HARMAN vs. JOHN GOODBREAD, Adm’r. of DAVID DICKEY.

If a plaintiff in a suit at law be taxed with more costs than he is legally bound to pay, his remedy is by a motion in the court of law for a re-taxation of the costs; and he cannot, after neglecting to avail himself of this remedy, have relief in equity.

If an administrator be sued upon notes and bonds of his intestate, pending an action- previously commenced against him upon a covenant of his intestate, he should plead the pendency of the action on the covenant, and that the assets would be liable in the first instance to the recovery in that action, if effected; and no assets ultra. And if he neglect to avail himself of such defence, he cannot afterwards have relief in equity.

The bill stated that David Dickey brought an action of covenant against the plaintiffs, as the representatives of thony Harman, deceased; and hi his declaration assigned five several and distinct breaches of the covenant declared on; that he afterwards died, and Goodbread, as his administrator, revived and carried on the suit; that Dickey first, and then his administrator, summoned many witnesses, to establish and support the several breaches of covenant assigned in the declaration; that the cause remained in the courts of law for many years; and at length Dickey’s administrator estabfished but one of the several breaches set out in his declara^on> an(^ a verdict and judgment for the damages assessed on that and full cost, which included the witnesses summone<^ on ^ ot^er breaches, as well as on the one upon which he prevailed. The bill then stated that, pending the action by Dickey’s administrator, all the assets of Harman had been exhausted, by actions brought on notes and bonds against his representatives. The bill prayed an injunction against the judgment, which the Judge granted. The answer of Dickey’s administrator came in, denying some of the facts stated in the bill, and insisted that the plaintiffs might have had relief at law, by proper pleading, if the facts stated in the bill were true. On a motion in the Superior Court to dissolve the injunction, the Court decreed accordingly, and the plaintiffs appealed.

plriylas plain tly at law, and neglects Wmseif of H -ht to 3»sk relief ia e«¡.uitjr.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: We are of the same opinion as the Judge was who decreed a dissolution of the injunction. We think the injunction at first was improvidently granted. If the plain, tiffs were taxed with more cost in the suit at law than they were legally bound to pay, their remedy was by a motion in the court of law for a re-taxation of the bill of cost. If the plaintiffs, as the representatives of Harman, were sued on notes and bonds subsequently to the commencement of Dickey’s action on the covenant, they should have plead the apendency of that action, and that the assets would be liable in the first instance to Dickey’s recovery, if effected; and no J . . ; , assets ultra. W here a party has a plain remedy at. law, ana neglects to avail himself of it, he has no right to ask relief in equity- The decree must, we think, he affirmed with COStS.

Per Curiam. Decreó accordingly.